from the expansion-of-power dept

You may recall, at the beginning of the year, Senator Ron Wyden complained about the secrecy surrounding ACTA and sent a series of questions to the USTR about the negotiations behind ACTA. While the USTR apparently replied in late January, both sides have only just revealed the contents of the response (pdf). It's about what you would expect. The answers leave plenty of wiggle room, and a few seem to be blatant falsehoods. For example, Wyden is concerned (accurately) not just over whether or not ACTA will change US copyright law, but if it will limit Congress's ability to change copyright law to fix some of its problems. The USTR claims that it is making sure there is "flexibility" in the agreement to allow for that -- but the leaked documents show no such flexibility.

Furthermore, the response confirms what became clear in the most recent leak, that the US sees ACTA as covering not just copyrights and trademarks -- but patents as well (though, some of the other participants are against including patents).

Finally, the USTR repeats the bogus claims that it is being transparent about ACTA, noting that it put up a dedicated web page. Well, doesn't that just solve everything?

Lets see here

but then there is the fourth branch, oft described as a loosely bound group of miscreats, which includes the pres, general puplic and politicalaction commitees.

And now there is a fifth? I doubt this new branch of government will have the power to "limit Congress's ability to change copyright law to fix some of its problems." because this would require a change to the constitution - right?

Re: Lets see here

"And now there is a fifth? I doubt this new branch of government will have the power to "limit Congress's ability to change copyright law to fix some of its problems." because this would require a change to the constitution - right?"

No, for a couple of reasons. You don't necessarily have to eliminate Congress's ability in a legal and technical way in order to do so effectively. All you have to do is create enough friction that the already stodgy congressional body won't get up off the couch and do anything. Congress is ALWAYS looking for reasons to lay around the house, watch some tv, make noise around dinner time, but ultimately do nothing.

Every once in a while they get motivated, so maybe one day they'll turn the tv off and ponder aloud, "You know, maybe we should consider altering that copyright thing. MOM!!?? DAD!!?? Let's take a look at that copyright thing!!!"

"Oh, sorry hun," Papa President will say from the other room, where he's playing poker with his lobbyist and CFR friends. "There's some treaties that make that REALLY hard."

So Congress will nod, lay back down on the couch, and flip the TV back on. After all, The Good Wife is coming on, and they love that show.

(I was trying to figure out how to work the Mom/Judiciary into this analogy, but I'm still a little sleepy....)

USTR's ACTA page

I went to look at the ACTA page set up by the USTR. The page really does its best to go into vague details (I know, oxymoron there) about the CTA and what the ACTA is supposed to do.

Take a look at the Fact Sheet from August 4, 2008. There is a Q&A section with the question, "Why has the ACTA been kept from the public?". Apparently, they're been getting this question for a long time and they answer by saying, "This process has not been kept from the public", and then cite the acceptance of public comments on the negotiations.

Receiving public comments on a subject is completely different from a transparency of the process to get the ACTA made...

Re:

Because he's still a senator, and doing that would have been an insult. You don't insult the senators if you want to keep doing what you're doing, because they'll have you in a committee hearing in a heartbeat if you do that. Then where is your non-transparent transparency?

Re:

Frankly, since the original letter was obviously prepared by EFF and mailed under the Senator's letterhead, I wonder why the USTR did not simply send his reply to the EFF with a cc to the Senator?

Wait, do you honestly think a Senator wouldn't actually be concerned about these issues?

And, in the meantime, since you were the one who recently insisted that none of us should talk about ACTA until *AFTER* it was done... and it's equally "obvious" that ACTA is being written by lobbyists, based on your logic, shouldn't it be the lobbyists who responded to Wyden's letter?

Re: Answer number nine is boggling

Supreme Court Outranks USTR

For patents, at least, reform is not coming from Congress. At present, and for the foreseeable future, reform is coming from the Supreme Court. I have every expectation, based on the published remarks of the justices during oral arguments, that Bilski will be decided in the broadest possible fashion, either unanimously, or by an 8-1 decision, Justice Sotomayor still being an unknown quantity.

The Supreme Court is superior to a treaty, and has the power to invalidate treaties which infringe the Constitution. Notwithstanding a pattern of historic deference to Congress in some areas (copyright, but not patent), the Court has virtually unlimited power, given its prerogative of interpreting the enabling clause of the Constitution.

Re: Re: Answer number nine is boggling

Because according to this document the USTR apparently believes that the point of 'Safe Harbor' is not the "Safe" (from unlawful actions) part but the "Harbor" (i.e. to Harbor a Criminal), requiring a penalty to be Protected from.

Re: Re: Re: Answer number nine is boggling

Re: Re:

Perhaps the good Senator does have an interest, but I have as yet to read any letter from a member of Congress that even remotely approaches the detail contained in the letter.

As for ACTA, my comments have always been limited to the "chicken little syndrome" exhibited by persons who seem more inclined to speculate on "what ifs", all the while waxing poetic about issues being discussed in the negotiations that are without legal effect within the US and in no way can limit the Article 1 powers of Congress as delineated in the US Constitution.

Feel free to rail against ACTA all you want, but at least do so in a manner that reflects an informed grounding on very basic principles of law.

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